The Joe Tenenbaum Case

While waves from the shipwreck that happened last month subside on this side of the Atlantic, an equally interesting intrigue flares up in the New World related to copyright, the RIAA (these letters will frighten children soon), sound recordings, professors and students of American universities. True, this time no one is trying to prove his innocence, just the opposite - the defendant admits that he is guilty, but the case still promises to become one of the most interesting lawsuits in the history of copyright. About everything, however, in order.

The case of Joel Tenenbaum, which will be discussed today, began in the year before last. A student at Boston University, Joe, is no different from thousands of other students. Including using P2P to search and download music of interest to him. Therefore, the story, as it should be, begins in a very classic way - a fine of $ 3,500 back in 2003, in response to which Joel offered the RIAA compensation in the amount of $ 500. When it came to court, where Joel did not have a lawyer and the 25-year-old boy had to defend his rights himself, he offered $ 5,000, but this amount was again rejected.

Judge Nancy Gertner, who led the lawsuit, attended to the fate of the graduate and introduced him to Charlie Nesson, a Harvard law professor. It was this accident that became a turning point in the fate of Tenenbaum and, quite possibly, copyright in the form to which we are accustomed.

It is worth saying a few words about Nesson himself, also known as "Charlie billion dollars" (Billion Dollar Charlie). This person is not just a well-known lawyer and respected professor, he is a person who makes history. For example, Nesson was one of the lawyers involved in the case , which formed the basis of the book , and then the film."Civil action". Therefore, as soon as Charlie agreed to take the case of a student who was accused of violating copyright (distribution of music), the case immediately acquired a very interesting connotation and intrigue. So far, I have not had to give up on her.

However, the professor also had some doubts. The first question he asked himself was: “How the hell am I going to do this? I’m not a criminal lawyer. ” The answer was found very quickly - a lawsuit could be an excellent lesson for Nesson's students from Harvard Law School, who, perhaps, have never had the opportunity to participate in a court on such an issue of concern to all. The students locked themselves in the university library, and Nesson called it all “the network as an instrument of study.” By the way, Charlie was one of the co-foundersThe Berkman Center for Internet & Society at Harvard University ten years ago, he even keeps an account on Twitter .

But back to the case itself. Obviously, the first question for both Tenenbaum and Nesson was how to make the justice authorities pay attention to the growing problem in the environment of copyright and, in particular, the colossal greed of the RIAA? Now we know that The Pirate Bay did not save the so-called " Defense of king kong"(Which was very loud, otherwise every second would not have learned anything about this case). Charlie Nesson also knows this, who has chosen a slightly different way of conducting the case, which he calls "radical transparency." Such a “transparency” bordering on impudence was not expected by any of the RIAA lawyers, who at the sight of Nesson begin to bark like yard dogs.

There is a completely adequate reason for this - Nesson is in full amusement with representatives of the accusing party, filling out official apology forms, petitioning for webcasting of each court session (a refusal has already been received on this point), scaring everyone with their thorough knowledge of American law - they can’t do anything even the judges can do it, because they cannot come to business with a directory. And this crazy desire to record absolutely everythingincluding even the usually confidential calls of lawyers, which annoys the RIAA most of all. They probably don’t know yet that each (without jokes) document involved in the business is carefully scanned and uploaded to a special portal on the network created by Nesson’s students, where they carefully process every bit of information in the hope that there is a legal and constitutional way to protect the person from the attacks of "recording studios."

All this resembles pure madness if not for one “but”. Is there a way to defeat madness? If you asked Charlie Nesson about this, the answer would be quite concrete. In his opinion, this case is not an attempt to protect Joel himself, but to urge people to an open discussion on copyright since 1976. And if the US government turns its eyes to Nesson, and most likely he will have to do this, then for the record industry in general, and the RIAA in particular, interesting times may come.

It is also important to understand that the main purpose of this “discussion” itself is not to change the situation with claims by P2P users (it is unlawful for now, there is nothing to be done about it), but to reduce the amount of fines that the RIAA willingly writes to all accused. So, if Joel’s first fine was only $ 3,500, then in the event of a loss, he faces $ 150,000 for each song. A fantastic amount that practically forces the guilty to go bankrupt: the maximum fine is $ 1,000,000, this money is usually paid all his life. Nesson’s goal is to “land” the size of fines, to make them reasonable and adequate.

The bottom line is that the typical “RIAA – Private Individual” lawsuit, as a civil case, passes as a criminal offense, the right to review of which belongs only to the state. It is also important that no court tried to consider P2P as a non-profit fair use of modern technology. The US government, however, still rejected all of Nesson's arguments on this subject, but this is not so significant.

The important thing is that Nesson is firmly convinced of the need for public debate on the issue of copyright, which will not happen until the government considers it necessary to invade this area. But with the tremendous public outcry that happened in Europe after the TPB trial and all the information about the case that was available thanks to Nesson and his students, copyright holders, professors and the government are interested in having the dialogue take place.

As Charlie himself says: “Such a dialogue cannot take place anywhere except on the Internet. The Copyright Act of 1976 does not even recognize the existence of such a thing as the World Wide Web, which has now changed everyone’s life beyond recognition. ” In his opinion, the entire legislative framework related to copyright holders needs to be reworked, and in particular the 1998 document (also called the Mickey Mouse Protection Act , thanks to which it did not fall into the “public domain”).

While George W. Bush was president, such an initiative in fact would have been killed in the bud. But now, when a man is sitting at the head of the White House who knows something about technology, and the chief prosecutor of the United States is Nesson’s boss, Elena Kagan, the former head of the Harvard Law School, it’s possible that the changes Nesson and his students will find their place in new legislation.

It remains only to hope that rationality will overcome greed. However, when the case is conducted by a person who openly offers the RIAA "to take part in an erotic excursion", one can safely believe that the current state of affairs with "piracy" will change dramatically in the near future.

On the trail ArsTechnica